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2009 DIGILAW 206 (CAL)

Sujata Das v. STATE OF WEST BENGAL

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment : PARTHA SAKHA DATTA, J. (1) The scope and ambit of the revisional jurisdiction under Section 397 read with Section 401 of the Cr.P.C. has once again been argued by the petitioner-wife who has been denied maintenance by the learned Additional Sessions Judge, Diamond Harbour in Criminal Motion No. 44 of 2006 through the order dated 18th of May, 2006 reversing thereby the grant of maintenance made by the learned Additional Chief Judicial Magistrate, Diamond Harbour upon hearing the application being case no. M-83 of 2005 corresponding to T.R. No. 312 of 2005 under Section 125 of the Cr.P.C. The petitioner argued through her learned Advocate that the order of the learned Additional Sessions Judge impugned would reveal that the learned Judge was approaching in a manner as if he was trying an offence so as to find out if an offence has been adequately proved or not; and in fact the order passed in revision would reflect that the learned Judge did forget that he was not exercising appellate jurisdiction and the scope of interference with the order of the learned trial court was limited to find out if the order impugned before the learned Judge would appear to be perverse and was contrary to the evidence on record. When this was not so, the learned Judge in the court of revision could not be said to have been justified in refusing maintenance to a poor and downtrodden girl who was neglected and refused to be maintained by her husband leading to which she moved an application under Section 125 Cr.P.C. before the learned Magistrate. (2) Mr. Debashis Roy, learned advocate appearing for the opposite party submitted that the Magisterial order was wrong and perverse inasmuch as evidence if analyzed properly would tend to show that the wife came out of the matrimonial home out of her own accord and disassociated herself from the society of her husband which would justifiably entitle the husband to refuse to maintain the wife in view of sub-section (4) of Section 125 Cr.P.C. The order of the Additional Sessions Judge has been passed upon examination of the evidence on record and must not be disturbed. (3) In the maintenance application under Section 125 Cr.P.C. the petitioner who was married to the opposite party admittedly on 11-06-2004 alleged that sometime after her marriage it came to be revealed that her husband was a man of loose virtue, a drunkard, and would return home at late night and would assault her. Further, being dissatisfied with the quality of the ornaments and other articles which were presented in the marriage her husband demanded a sum of Rs.20,000/-from her father and on the pretext of demand of more money she was subjected to assault and ill treatment. On 18th of October, 2004 she was severely assaulted and driven out. She lodged a diary being GDE No. 364 with the local police station at Diamond Harbour on 6th of January, 2005. After being driven out she remained neglected and uncared for. In the written objection there was total denial of the petitioners narrative in the application for maintenance. It was alleged that on 18th of October, 2005 the petitioner left for fathers home on occasion of Durga Puja. The opposite party also had been to the house of his father-in-law and returned home but the wife refused to come on the ground that she would stay in her fathers house for some more days. When the opposite party again went to his father-in-laws house after Laxmi Puja to bring his wife back she refused to come back. He was humiliated and threatened with dire consequences. He instituted a suit, being MAT Suit No. 204 of 2005 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which is pending. The petitioner said in her evidence that after marriage she noticed that her husband was a habitual drunkard and would torture her under the influence of liquor. Pressure was mounted upon her to bring Rs.20,000/-from her fathers house which could not be fulfilled. She was denied sufficient food. Her husband has affairs with number of women and on 18th of October , 2004 she was assaulted and driven out. In her cross-examination she stated that she was not willing to go to her husband if he would file an application before the court. A close scrutiny of cross-examination of the petitioner would reveal that such cross-examination consisted of parade of suggestions which she denied. In her cross-examination she stated that she was not willing to go to her husband if he would file an application before the court. A close scrutiny of cross-examination of the petitioner would reveal that such cross-examination consisted of parade of suggestions which she denied. She, of course failed to say in her cross-examination the date of her being driven out. She denied that she voluntarily came to her fathers house on the occasion of Durga Puja or that she refused to come back to her matrimonial home. (4) The opposite party in his evidence stated that on the day of Durga Puja his wife left for her fathers house but she refused to come back and he did not drive her out. He came to her father-in-laws house to take back the wife who refused to return back. He sent advocates letter to his wife with request to come back to his family but she refused to take the advocates letter and then he filed a case for restitution of conjugal rights. The cross-examination of the opposite party also consisted of certain suggestions which he also denied. (5) Maintenance application was filed on 14th of February, 2005 while the marriage took place on 11th June, 2004. Matrimonial discord developed within four months of her marriage. It is apparent that the petitioner went back to her matrimonial home in October, 2004. According to the petitioner she was driven out on 18th October, 2004, while her husband alleges that she was seen off in the bus stand on 18th of October, 2004 as she intended to leave for her fathers house. It is the allegation in the petition that in terms of demand of dowry, ornaments and other articles were given in the marriage inclusive of a cash of Rs.40,000/-and the opposite party was not satisfied with the quality of the articles and there was demand of Rs.20,000/-which she could not fetch from her father, as a result of which she was subjected to mental and physical torture. The opposite party in his written objection as also in his evidence denied having received dowry and gold ornaments. The opposite party in his written objection as also in his evidence denied having received dowry and gold ornaments. The learned Magistrate upon consideration of evidence of the parties posed the question as to why a lady after marriage would choose to live apart from her husband foregoing the safe shelter and protection from husband if she was not subjected to torture in the matrimonial home. The learned Judge in the court of revision attacked the judgment of the learned Magistrate observing that when the parties have no issue the learned Magistrate observed "so I have no hesitation to hold that the opposite party is willfully and negligently did not maintain his wife and children". The addition of the word "children" by the learned Magistrate in the order impugned before the learned Sessions Judge was taken exception to by the learned Judge I think this is purely insignificant and trifling and this cannot be the ground of revision. Reasoning of the learned Magistrate is that a lady would not choose to live apart from her husband if she was not tortured in the matrimonial home and the wife alleged in the petition and in her evidence that her husband subjected to her to assault physically and mentally and that her husband had illicit affairs with other ladies and further that on 18th of October, 2004 she was assaulted mercilessly and driven out on demand of Rs.20,000/-. Now, the learned Judge reasoned that if she was really assaulted mercilessly she would have sustained injuries but none came forward to corroborate the story of assault and no medical report was produced. I fail to pursuade myself with the reasoning of the learned Judge. It is not the assertion in the petition that she was medically examined by a doctor so that the learned Judge would demand of her for production of medical report. Therefore, non-production of injury report does not ipso facto negative the case of physical and mental torture. The learned Judge demanded of the petitioner corroboration of her evidence by other witnesses. The same demand can be made of the husband who also did not get his evidence corroborated. Yes, the petitioner said in her cross-examination that she was not willing to go to her husbands house. The learned Judge demanded of the petitioner corroboration of her evidence by other witnesses. The same demand can be made of the husband who also did not get his evidence corroborated. Yes, the petitioner said in her cross-examination that she was not willing to go to her husbands house. This utterance of the wife was interpreted by the learned revisional court in favour of the husband to mean that the wife left for her fathers home out of her own accord and will. No analysis was made as to why the wife was not willing to go back to her husbands house. It is not the case of the husband that the wife had any other reason than the alleged wild plea of assault and torture for her decision to leave the matrimonial home within six months after her marriage. The learned Judge observed that the plea of the husband having illicit connection with his own relation or other ladies could not be proved. It is not the alleged illicit connection of the husband with other women which is the subject matter of trial. The subject matter of the case was maintenance on the ground of neglect and refusal to maintain his wife. Even if it is held that the allegation of the wife against the husbands having illicit connection with other ladies is not proved, that would not tantamount to disprove of the maintenance case. The learned Judge referred the fact of the institution of the suit of restitution of conjugal rights. Institution of the suit does not mean and entail that the assertions or averments in the petition under Section 125 Cr.P.C. have to be taken to be untrue. The learned Judge said that the opposite party lodged diary against the petitioner. Reverse is also true. The fact is that neither the wife nor the opposite party could produce the G.D.Es lodged by one against the other. Therefore, if non-production of the G.D.E by the wife goes in favour of the husband, then non-production of the G.D.E by the husband goes in favour of the wife. How the learned Judge came to the conclusion that the wife intended not to go back to the house of the husband is the pertinent question. Therefore, if non-production of the G.D.E by the wife goes in favour of the husband, then non-production of the G.D.E by the husband goes in favour of the wife. How the learned Judge came to the conclusion that the wife intended not to go back to the house of the husband is the pertinent question. Equally pertinent question was why the wife would refuse to go to the husbands house if she was not deserted as has been posed by the learned Magistrate in his order, particularly when the matrimonial discord developed within four months of marriage. Learned advocate for the wife submitted that issuance of advocates letter calling upon the wife to come back to the matrimonial home has to be taken not in a casual manner. It is submitted that the institution of the suit for restitution of conjugal right was a first step taken by the husband in his calculated move to get rid of the wife and advocates letter was definitely on the advice of a lawyer. If nothing had developed between the parties, if no matrimonial discord was at all there then issuance of advocates letter to the wife would not have been warranted. The learned Magistrate appears to have correctly observed that the husband has to shoulder maintenance of the wife and children. Can it be said that the order of the learned Magistrate is perverse? Can it be said that the order of the learned Magistrate is absolutely contradictory to the evidence? I think it is not so. In such circumstance, the learned Additional Sessions Judge sitting in revision proceeded to examine the judgment as if it was a judgment in a criminal case where evidence has to be meticulously analyzed. If two views are possible one in favour of the petitioner and the other in favour of the husband then the mere fact that the view in favour of the husband which has been adopted by the learned Judge is possible or plausible is no ground to disturb the finding an order of maintenance granted in favour of the wife, because the law is well settled that the revisional power should be exercised only in exceptional cases when there is a clear defect in the procedure or there is manifest error on the point of law and consequently there has been a flagrant miscarriage of justice. Revisional Court is however not expected to act as if it is hearing an appeal. In such view of the matter I do not think that the approach of the learned Additional Sessions Judge has been legal and correct approach. (6) I allow this application and set aside the judgment and order of the learned Additional Sessions Judge dated 18th of May, 2006 and restore and affirm the judgment and order of the learned Additional Chief Judicial Magistrate, Diamond Harbour dated 31st of December, 2005. (7) A copy of the order shall be sent to the learned Magistrate for information and necessary action.